There are several mischief-related offences under the Criminal Code. Mischief involves some type of interference with property, the most common examples being vandalism and destruction of property.  However, you can also commit mischief by interfering with computer data or doing something or failing to do something that endangers another person’s life. The potential penalties that stem from a mischief conviction vary based on the act or omission itself, the value of the property damaged, the type of property, the motivation behind the conduct, and the collateral consequences of the conduct itself.

What is Mischief?

The Mischief offences under the Criminal Code can be described as falling into three categories:

1. Mischief resulting from to damage to property or interference with the use of property;
2. Mischief resulting from interference with electronic data; and
3. Mischief, which risks or endangers life.

Mischief – Damage to Property

Under s. 430(1) of the Criminal Code, it is an offence to:

• destroy or damage property;
• render property dangerous, useless, operative, ineffective;
• obstruct, interrupt, or interfere with the lawful use, enjoyment, or operation or
• obstruct, interrupt, or interfere with any person in the their lawful use, enjoyment, or operation of property

More specifically, if you are charged with Mischief in relation to the damage or interference with property, you will be charged with Mischief Under $5000 or Mischief Over $5000. Which one you are charged with depends on the value of the property that was damaged or interfered with – not the cost of the damage itself.

"Property" is not limited to a structure or the features of a structure but can include anything belonging to a person, for example, a cell phone, articles of clothing, etc. 

You can also be charged with:

• Mischief relating to religious property or education under section 430(4.1) if the commission of the offence is motivated by bias, prejudice, or hate that is based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or physical or mental impairment;
• Mischief relating to war memorials under section 430(4.11) if the property involved is or is part of a building or structure that serves as a monument to honour persons who died as a consequence of war; and
• Mischief in relation to cultural property under section 430(4.2).

Mischief in Relation to Data

Under s. 430(1.1) of the Criminal Code, it is an offence to:

• destroy or alter computer data;
• render computer data meaningless, useless or ineffective;
• obstruct, interrupt, or interfere with the lawful use of computer data; or
• obstruct, interrupt, or interfere with a person in the lawful use of computer data OR denies a person’s access to data who is entitled to access it

Mischief - Act or Omission Causing Risk to Life

Under s. 430(5.1), it is an offence to wilfully act or omit to do an act that is a person’s duty to do so if that act or omission is likely to constitute mischief causing actual danger to life or to constitute mischief in relation to property or damage.

Possible Penalties if Convicted of Mischief

The Mischief offences under the Criminal Code are hybrid offences, meaning the Crown can elect to proceed by summary conviction or by indictment. The potential penalties for mischief are outlined below:

Mischief Under $5000

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: the maximum punishment is a term of imprisonment not exceeding two years.

Mischief Over $5000

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: the maximum punishment is a term of imprisonment not exceeding ten years.

Mischief Relating to Religious Property or Education Institutions:

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: the maximum punishment is a term of imprisonment not exceeding ten years
• If the Crown proceeds by summary conviction: the maximum punishment is a term of imprisonment not exceeding two years less a day.
• If the Crown proceeds by indictment: the maximum punishment is a term of imprisonment not exceeding ten years.
• Mandatory Minimums: regardless of whether the Crown proceeds by summary conviction or indictment:
  • For a first offence: A fine of not less than $1000;
  • For a second offence:Imprisonment of not less than fourteen days;
  • For each subsequent offence: Imprisonment of not less than thirty days.

Mischief Relating to Cultural Property

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: the maximum punishment is a term of imprisonment not exceeding ten years

Mischief in Relation to Data

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: the maximum punishment is a term of imprisonment not exceeding ten years.

Mischief Causing Risk to Life

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: the maximum punishment is a term of imprisonment not exceeding five years.

Defences Available for a Charge of Mischief

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes defences that may be available in a Mischief case:

• Factual Innocence: If the Crown is unable to prove the essential elements of the particular offence beyond a reasonable doubt, they will have failed to discharge their burden, and the accused will be acquitted.
• Accident: Where damage to property was the result of an accident, the accused may lack the necessary intent required for a conviction.
• Colour of Right: A defence to a charge of Mischief exists where the accused can prove he or she acted with legal justification or excuse due to an honest belief that the property in question belonged to him (i.e. an honest belief that the computer data in question belonged to the accused).
• Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
  • the right against unreasonable search and seizure;
  • the right to not be arbitrarily detained;
  • the right to be informed promptly of the reasons for arrest;
  • the right to retain and instruct counsel without delay; and
  • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings or evidence from your case being excluded.

Alternative Outcomes

In some instances, it is possible that your charge(s) may be resolved without going to trial or pleading guilty. The availability of these alternative outcomes depends on a number of factors; each case is fact-specific. The following is a list of examples of alternative outcomes in a criminal case:

• Withdrawal of Charge(s): The Crown may decide to withdraw a defendant’s charge(s) where:
  • The Crown does not believe they have a reasonable prospect of conviction at trial, due to various reasons; or
  • It is not in the public interest to prosecute.
• Stay of Proceedings: A stay of proceedings effectively stops a legal proceeding in its tracks, and is a rarely granted remedy. The difference between a stay of proceedings and a withdrawal is that, with a stay of proceedings, the Crown may decide to continue the proceedings at a later date.
• Diversion: Diversion (often referred to as "Direct Accountability" or "DAP") is an alternative way of resolving charges in the criminal justice system, and provides offenders with an opportunity to take accountability for their actions without incurring a criminal record. Diversion is usually reserved for minor offences and first-time offenders. To successfully complete a diversion program involves some form of upfront work by the accused, including but not limited to:  
  • A written apology letter;
  • Charitable donation(s);
  • Community service/volunteer hours;
  • Counselling and/or programming; and
  • Restitution/compensation.

Next Steps

The information above provides a general overview of Mischief-related offences under the Criminal Code, as well as potential penalties and defences. However, no two cases are alike. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play.

Were you charged with Mischief? Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach that is tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.